Research Paper

Euthanasia and Assisted Suicide a Legal and Ethical Dilemma

'How can it be lawIul to allow a patient to die slowly, though painlessly, over a
period oI weeks Irom lack oI Iood but unlawIul to produce his immediate death by a
lethal injection, thereby saving his Iamily Irom yet another ordeal to add to the
tragedy that has already struck them? I Iind it diIIicult to Iind a moral answer to that
question. But it is undoubtedly the law and nothing I have said casts doubt on the
proposition that the doing oI a positive act with the intention oI ending liIe is and
remains murder.
Lord Brown-Wilkinson in Airedale N.H.S. Trust v Bland |1993| A.C. 789
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1.0 Introduction

This research essay aims to provide a critical analysis into the liIe ending decisions oI
people (reIerred to now as 'the patient) and the legal and ethical debated that arise.
The implications oI the distinction between acts and omissions given by Lord Brown-
Wilkinson
1
are oI paramount importance to the potential criminal liabilities and this
raises a number oI sensitive and controversial issues.

The issues that are raised and will be discussed are as Iollows:

1) Ethical debate: the three competing paradigms oI Vitalism, Sanctity oI LiIe
and Quality oI LiIe.
2) Distinction between acts and omissions and causation issues.
3) Competence: how can a patient inIluence the manner oI their death? The
concept oI patients` 'best interests when incompetent to decide Ior
themselves.
4) Liabilities Ior third parties assisting the suicide oI another.
5) Impact oI the European Convention on Human Rights.

1.1) Parameters Ior discussion

A greater emphasis will be place on an analysis oI the law and potential criminal
liabilities that arise with assisted suicide and the legal causation issues that arise with
the diIIerence between acts and omissions. Due to word limitations little time will be
spent on the ethical dilemma and a brieI background on the basis oI criminal law will
be discussed.







1
Airedale N.H.S. Trust v Bland |1993| A.C. 789

2.0 Ethical and Legal Issues

2.1) Ethical Debate

In any situation involving the decision to end a person`s liIe there will always be
competing ethical dilemmas about how the decision should be made. The three main
competing views will be outlined brieIly below.

Firstly there is 'vitalism. This paradigm argues that human liIe is an absolute value
and that it should be preserved whenever possible, regardless oI the circumstances.

The second paradigm is the Sanctity oI LiIe. This paradigm is heavily Iounded in
religious views however it is widely accepted and interpreted by modern societies.
This paradigm argues that a person must never intentionally end the liIe oI an
innocent human being. The term 'innocent is interpreted as to allow the killing oI
human beings lawIully in selI deIence, war or the execution oI capital oIIenders;
however this has little relevance in patient and doctor scenarios. This paradigm
assesses whether the proposed treatment will have any expected worthwhile eIIect on
the patient`s quality oI liIe.

Lastly there is the Quality oI LiIe paradigm. This paradigm assesses whether or not
the patients quality oI liIe is worthwhile in order to receive treatment. ThereIore it
assesses the worthiness oI the patient`s liIe, not the treatment itselI.
2
The main ethical
issue is who decides when a patient`s expected quality oI liIe is worth treating? Where
is the threshold?

Another important ethical dilemma is the doctrine oI double eIIect. This doctrine
places emphasis on the intention oI the parties involved in order to determine whether
a wrong has been done or not. Keown
3
gives an example oI two dentists Mr Fill and
Mr Drill who both perIorm a standard procedure in drilling a tooth. Mr Frill drills the
tooth to Iill a cavity with the knowledge that as a side eIIect this will cause pain.
Alternatively Mr Drill drills the tooth and intends to cause you pain. In this sense the

2
For a more in depth discussion see: L.Q.R. 2009, 125(Jan), 142-174
3
See: J.Keown, Euthanasia, ethics and public policy: an argument against legalisation (2002) pp 20-22
outcome oI both dentists is the same however Mr Frill has not done anything morally
wrong where Mr Drill has.

When applied to the issue oI assisted suicide the doctors intention will be oI
paramount importance. II the doctor`s intention is to relieve suIIering as opposed to
killing the patient then they are not necessarily ethically wrong. This is not a new
principle. Doctors are permitted to treat patients with pain relieving treatment that
may have the side eIIect oI shortening liIe. The idea is that the doctors have done
nothing morally wrong iI the intention oI administering those dugs is to relive pain
and suIIering, not to shorten liIe as Ognall J states in the case oI R v Cox.

'II a doctor genuinely believes that a certain course in beneIicial to his
patient. even though he recognises that that course carries with it a
risk to liIe he is Iully entitled nonetheless to pursue it
4



2.2) DiIIerence between acts and omissions

In the Case oI Bland
5
Lord Brown-Wilkinson makes a clear distinction between acts
and omissions. This distinction is crucial as it aIIects the potential criminal liabilities
involved. A positive act that causes the death oI another with intent must satisIy the
mens rea and actus reus Ior murder.

In order Ior an act to be considered positive it must IulIil the requirements Ior
causation both Iactually and legally. The 'but Ior test
6
to satisIy Iactual causation
and the issues arising in legal causation: was the act an operating cause oI death
'something more than a slight or triIling link
7
.

On the Iacts the oIIicial solicitor made a powerIul argument that the removal oI the
nasogastric tube was a positive act, but Ior the removal oI the tube the patient would

4
R v Cox 1992 12 BLMR 38
5
Airedale N.H.S. Trust v Bland |1993| A.C. 789
6
R v White |1910| 2 KB 124
7
R v Kimsev |1996| Crim LR 35
not have died. However Lord Brown-Wilkinson rejects this argument on both Iactual
and legal grounds:

'the mere Iailure to continue to do what you have previously done, in
any ordinary sense, to do anything positive
8

And:
'The removal oI the tube itselI does not cause death since by itselI it
did not sustain liIe
9


ThereIore but Ior the tube being removed would the patient have died? Yes. Was the
act a substantial and operating cause oI death? No. On this basis Lord Brown-
Wilkinson would not Iind liability Ior murder Ior the removal oI the nasogastric tube
and would not deIine it as a positive act.

This is an example oI a judge using their ability interpret legislation in order to give
the most just result. II the act oI removing the tube was Iound to be positive then it
would be illegal Ior the doctors to remove it without being liable Ior murder. This
would have been an unjust decision as the wide medical opinion was that it was in
Blands bests interests to remove the tube even though death was Ioreseen.

The patients or in this case the patient`s parents consent in the act to cause death as a
deIence would not be available Ior a positive act in this sense.

As explained above the removal oI the Ieeding tube was not classiIied as a positive
act, it was held as a mere Iailure to do something they had already done, thereIore, it
will rest as an omission. For criminal liability to be Iound Ior an omission it is
necessary to establish that there is a duty oI care between the parties. It is an
established principle that there is always a duty oI care between doctors and their
patients.
10



8
Airedale N.H.S. Trust v Bland |1993| A.C. 882
9
Ibid
10
R v Bateman (1925) LJKB 791
In this case the Iailure to care Ior Bland when a duty oI care has been established
would constitute a breach oI that duty will attract criminal and civil liabilities
11
Ior the
people that have assumed that duty, in this case the Airedale N.H.S. Trust.


The most important distinction between the act and omission is that the deIence oI
consent is available Ior an omission as the duty oI care is extinguished. In this case
the discontinuation oI treatment and Ieeding. However this raises the issues oI the
patient`s ability to consent.


2.3) Issue oI Consent

It is a well established rule that it is the patients right to reIuse any treatment oIIered.
II treatment were to be administered despite the patient`s wishes Ior any reason then
there is the potential Ior liability Ior battery
12
.

However an issue arises when the patient is unable to give consent. This can arise Ior
many diIIerent reasons Ior example the patient being unconscious or mentally
incapacitated. The question is in these scenarios how can the courts decide whether or
not treatment (or the withdrawal oI) should be administered? This is the question that
will be looked at in detail below.

A prevailing view is the concept oI 'best interests i.e. what should be done in the
best interests oI the patient. When a patient reIuses treatment when they are capable
oI consent it is considered that the decision is made by the patient according to what
they believe constitutes their own best interests.

However Ior a patient that is incompetent it is necessary to establish what the patient`s
bests interests are according to somebody else`s opinion. The test Ior this can be

11
R v Gibbins and Proctor (1918) 13 Cr App Rep 134, 82 JP 287 CCA
12
/%0%1 2 3454(4 |1969| 1 QB 439
Iound in the case oI Re F
13
and drawing ratios Irom the case Bolam
14
: in accordance
with the practice accepted by a reasonable body oI medical opinion.

F was a mental patient and had begun a sexual relationship with another patient. The
question beIore the court was could a sterilisation procedure on F be perIormed
legally despite her incapacity to consent. It was held that it was in the patients 'best
interests Ior the procedure to be done by Lord GoII at page 79 stating:

'the overriding consideration is that they should act in the best
interests oI the person who suIIers Irom the misIortune oI being
prevented by incapacity Irom deciding Ior himselI what should be done
to his own body, in his own best interests

In contrast to the case oI Bland, the question was whether or not it was in the patient`s
best interests to continue treatment. The patient himselI was unable to give consent to
due his persistent vegetative state. Due to the particular Iacts oI the case a wide body
oI expert medical opinion decided that it was not in the patient`s best interests to
continue treatment thereIore treatment was discontinued and the patient died as a
result.

This then raises the question, when a patient is unable to consent to the withdrawal oI
treatment, will it always be legal iI it is deemed in the patients best interests? The
simple answer is no. The ratio derived Irom the case oI Bland is extremely narrow and
cannot be interpreted to answer the question above. This was not done by accident.
Lord Brown-Wilkinson at page 886 states:

'I am very conscious that I have reached my conclusions on narrow,
legalistic grounds which provide no satisIactory basis Ior the decision oI
cases. where the Iacts are not identical


13
Re F. (MENTAL PATIENT: STERILISATION) - |1990| 2 A.C. 1
14
Bolam v. Friern Hospital Management Committee |1957| 1 W.L.R. 582

'Unless, as I very much hope, Parliament reviews the law, the courts will
be Iaced with cases where the chances oI improvement are slight or the
patient has very slight sensate awareness. I express no view on what
should be the answer in such circumstances: my decision does not cover
such a case

ThereIore the issues oI competence plays an important role in patient autonomy and
deciding whether or not to receive potential liIe saving treatment however in cases
where patients are held to be incompetent the decision can be made Ior them on a very
narrow basis.

Now it has been shown that there is potential Ior doctors to remove treatment Irom
patients who are competent (and in extreme cases incompetent) to decide, even when
death is Ioreseen. So Iar it appears that the only way in which a competent adult can
inIluence the manner in which they die is through their ability to decline treatment.
This is essentially true however in some countries it is legal Ior a patient to end their
liIe by a positive means iI they so wish.

However a problem arises when a competent patient wishes to terminate their liIe by a
positive means. As seen beIore in the UK any positive steps taken with the intention
to end liIe is nothing short oI murder, regardless oI the circumstances. ThereIore it is
important to see how a third party as an accessory to another`s suicide can be liable
under criminal law.

2.4) Assisted suicide: third parties liability

Under the Suicide Act 1961 any person that 'aids, abets, counsels or procures in the
suicide (or attempted suicide) oI another will be liable Ior a prison sentence not
exceeding Iourteen years
15
.

Two high proIile cases in this area are the cases oI Diane Prettv
16
and Debbie
Purdv
17
. In both cases the women were planning on travelling to another country

15
Suicide Act 1961 Section (2)1
where assisted suicide (euthanasia) was legal and terminating their lives. The cases
concerned the liability oI those assisting them in travelling and making arrangements
Ior them. Under the strict letter oI the law those aiding them could Iace criminal
prosecution.

Under section 2(4) oI the act it states that a proceeding Ior an oIIence under section
2(1) can only be commenced with the consent oI the Director oI Public Prosecutions
(DPP). ThereIore in both cases an important question Ior the plaintiIIs was would the
DPP set out speciIic guide lines Ior when he would chose to proceed Ior a prosecution
under section 2(1). It was held in both cases that the DPP was under no obligation to
provide a speciIic set oI guidelines Ior an oIIence committed under section 2(1) oI the
act. General guidance on whether or not a prosecution would be commenced would
depend on the whether there is suIIicient evidence to give the likelihood oI a
conviction and whether or not the prosecution would be in the public interest. This is
the 'Full Code Test
18


Further guidance on whether or not a prosecution would be likely can be taken Irom
the case oI Daniel James. The man in question was leIt paralysed aIter a rugby
accident. AIter attempts to take his own liIe he travelled, accompanied by his parents,
to Switzerland to the Dignitas Clinic
19
where he died by means oI euthanasia. On
returning to the UK his parents then Iaced prosecution under section 2(1) oI the act.
There was enough evidence to secure a conviction thereIore the DPP went on to
decide whether or not it would be in the public interest. A number oI Iactors were
considered however the most important contributing Iactors against prosecution were
that the parties had not inIluenced Daniel to take his liIe (in Iact they had attempted to
dissuade him) and the parties did not stand to gain through his death. When the Iactors
were taken into account the DPP decided it was not in the public interest to pursue a
prosecution.


16
R (on the application of Prettv) v Director of Public Prosecutions - |2002| 1 All ER 1
17
R (on the application of Purdv) v Director of Public Prosecutions, Societv for the Protection of
Unborn Children intervening - |2009| All ER (D) 197 (Feb)
18
Prosecution oI OIIences Act 1985
19
See www.timesonline.co.uk/tol/news/uk/article4969423.ece (last viewed 30/3/2009)
Although the Iacts Irom case to case vary widely it is possible Irom the case a Daniel
James to extract some guidance on whether or not a prosecution is likely.

An issue raised in the case oI Prettv is whether or not article eight oI the European
Convention on Human Rights (ECHR) is engaged? Prettvs arguments were based on
her personal autonomy and the right oI selI determination to make decisions about her
own body and that this autonomy is compromised when Iaced with the prospect that
anybody assisting her may Iace prosecution. The House oI Lords held that her article
eight rights were not engaged and rejected this argument. Lord Steyn states that:

'Article 8 prohibits interIerence with the way in which an individual
leads his liIe and does not relate to the manner in which he wishes to
die
20


Lord Hope also rejects the argument on diIIerent grounds. He states:

'the closing moments oI her liIe is part oI the act oI living. in that
sense her private liIe is engaged
21


However he goes on to say:

'it is an entirely diIIerent thing to imply those words into a positive
obligation to give eIIect to her wish to end her liIe by means oI assisted
suicide
22


ThereIore in the case oI Prettv the House oI Lords rejected the argument that her
article eight rights are engaged. This however was inconsistent with the judgment
Irom the European Court oI Human Rights who Iound that her article eight rights
were engaged.


20
R (on the application of Prettv) v Director of Public Prosecutions - |2002| 1 All ER 1 Page 61
21
Ibid
22
Ibid
The question Ior the Court oI Appeal in the case oI Purdv was whether the court was
bound by the previous decision in Prettv or were they at liberty to apply the ruling oI
the Strasbourg Court? It was held that the court was not bound by the European Court
and was bound ultimately by the House oI Lords and must Iollow the decision in
Prettv and the human rights argument was rejected on similar grounds.

It can be observed in the UK the current law on euthanasia is largely unaIIected by the
European Convention on Human Rights. The law is still Iounded in the Suicide Act
1961. However the Act eIIectively decriminalised the act oI a person committing
suicide reIlecting a changing society and that people who attempted suicide require
help not punishment. ThereIore should the same be said Ior those who assist? Is it
right that to assist someone in ending their own liIe be punishable where the person
who attempted suicide is not punishable?

It is undoubtedly true that the law is created in the interests oI the majority, as lord
Lane observes:

'It is clear. that Parliament had in mind the potential scope Ior
disaster and malpractice in circumstances where elderly, inIirm and
easily suggestible people are sometimes minded to wish themselves
dead. in terms oI gravity it can vary Irom the borders oI cold-blooded
murder down to the shadowy area oI mercy killing or common
humanity
23


Cases such as those oI Purdv, Prettv and James are oI the exception and it does not
seem just that their husbands and parents should be liable under section 2(1). It seems
that saIeguards are in place in order to protect people in the situations oI the three
cases above. The discretion oI the DPP and the 'Iull code test enables the DPP not to
prosecute when there is no public interest. II however the DPP decides it is in the
public interest to prosecute under S.2(1) oI the Suicide Act then there is another
saIeguard oI the court`s power to determine sentencing. II in court the Judges opinion

23
R v Hough (1984) CAR (S) 406.
is that a custodial sentence is not in the best interests then they can choose not to give
one.
24


When the above three cases are contrasted against the case oI Hough
25
the diIIerence
between them is apparent. In the case oI Hough the deIendant was prosecuted and
received a custodial sentence oI nine months. The Iacts oI the case are diIIerent and
the deIended pleaded guilty under attempted murder however the Iacts oI the case
shows that her actions were more Iounded in section 2(1) oI the Suicide Act 1961. In
this case it was held that although the deceased expressed her intention that she
wished to die the deIendant was 'too ready to play an active part in the procuring, or
using, the paraphernalia oI death
26
in placing the plastic bag over the victims head to
cause death. Lord Lane describes a scale between cold-blooded murder and common
humanity
27
. The case oI James can be concluded to be at a much lower end oI the
scale (towards common humanity) than in the case oI Hough, thereIore it is apparent
why Hough received a custodial sentence and James did not Iace prosecution.





3.0 Conclusions

As discussed earlier the distinction between acts and omissions is crucial. Looking
back again at the case oI Antonv Bland the positive act to terminate his ventilation by
artiIicial means was illegal and would attract criminal liability Ior murder. This is the
case despite the Iact that he is expected to die within two weeks. In criminal law this
is still murder. This supports the paradigm oI Vitalism.

The removal oI the Ieeding tube was held as an omission. As discussed beIore this did
not attract criminal liability as the court examined the extent oI the duty oI care owed
to the patient. It was reasoned that the doctors did not owe the patient a Iurther duty oI

24
Powers oI Criminal Courts (Sentencing) Act 2000 Section 12
25
R v Hough (1984) CAR (S) 406.
26
Ibid
27
Ibid
care that would go against the patients 'best interests. It was not in the patients best
interests to continue treatment thereIore it could legally be removed. In respect to the
omission whether you support the Sanctity oI LiIe (SoL) or Quality oI LiIe (QoL)
paradigms the result would be the same. No Iurther treatment would beneIit the
patient`s quality oI liIe (SoL) and the patient`s quality oI liIe would not be
worthwihile in receiving Iurther treatment (QoL). Although these appear very similar
the reasoning behind them is diIIerent.

3.1) Should the distinction be relaxed or tightened up?

This is not an issue Ior the courts to decide. Although they have powers oI
interpreting legislation they cannot change well established laws Ior separate cases oI
euthanasia or assisted dying. The proper Iorum Ior this is parliament. Despite Lord
JoIIe`s attempts to introduce a bill to Parliament to legalise 'assisted dying this has
been rejected by the House oI Lords and this reIlects that the distinction should be
tightened up. Furthermore the Medical Treatment (Prevention oI Euthanasia) Bill in
January 2000, produced aIter the judgement oI Bland seeks to tighten up this
distinction and prevent doctors allowing patients to die through an omission.

ThereIore euthanasia is illegal in the UK and it appears that it will stay that way and
possibly the law tightened up. However people are not prevented Irom using services
in countries where euthanasia is legal Ior example Belgium or Switzerland. This
attracts no liability iI the patient is capable oI coming to this arrangement by
themselves and precedent shows that it is highly unlikely (although not guaranteed)
that loved ones helping them will Iace prosecution. II they were to Iace prosecution
however it is unlikely still that they will receive a custodial sentence, Lord Judge CJ
in the case oI Purdv stating it would be 'inexpedient to inIlict punishment on these
oIIenders
28
.

3.2) Is this a satisIactory outcome?


28
R (on the application of Purdv) v Director of Public Prosecutions |2009| All ER (D) 197 (Feb) Page
13
This is a sensitive and controversial area and those wishing Ior physician assisted
suicide would Iind this unsatisIactory and would want the law changed. The
procedure oI euthanasia in countries where it is legal is highly regulated to prevent
abuse oI the system. It is estimated that since October 2002 over 90 people have
travelled abroad to use these services
29
. The reliability oI this data however could be
called into question given the bias oI the publisher.
30
II this reIlects the changing
opinion oI society then there is no reason why the law in the UK should not be
changed through parliament to reIlect public opinion. In the words oI R. Dworkin, an
advocate oI assisted suicide:

'Making someone die in a way that others approve, but he believes a
horriIying contradiction oI his liIe, is a devastating, odious Iorm oI tyranny.
31



29
Source: www. dignityindying.org.uk
30
For more reports: http://www.dignityindying.org.uk/assisted-dying/assisted-dying-is-happening-
despite-the-law-against-it.html
31
R. Dworkin, LiIe`s Dominion (1993) 217